The Rights of the People (16 page)

“We’d ask several questions: Where you coming from? You know. Who you going to see? How long you gonna be here? Can I see your train ticket? We’d ask for the ticket, and they’d show us the ticket; we’d look at it. If I held on to that ticket, that means I detained the person,” for which he’d have to have probable cause and advise them of their Miranda rights not to answer. “So I’d take a quick look at the ticket, see where the travel was from, New York to Washington, D.C., being round trip, paid for by cash, stuff like that. And I’d give the ticket back.”

As Brennan knew, having read the Supreme Court ruling in
Florida v. Royer
, holding the ticket too long, the way narcotics detectives at Miami International Airport had done in 1978, the passenger would have been effectively “seized” without probable cause, and any evidence discovered as a result would have been inadmissible. The Court had thrown out the Florida conviction after detectives had taken a man’s ticket and driver’s license, had led him to a small room for questioning, and had then obtained reluctant consent (not voluntary, given his unlawful confinement) to open his suitcases, which contained marijuana.
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Like Neill in the street, Brennan in the station would watch people’s reactions when he asked their names, inquired into their reasons for travel, and the like.

A lot of drug dealers wouldn’t look him in the eye, Brennan learned. “They would be talkin’ to you but kind of lookin’ away from you. Or, they’d be gazing for your backups, you know, trying to look around and
see whether or not you had other people with you. Or, possibly, looking for escape routes: If I decide to take off, which way do I go? And then you’d look for the sweating. A lot of times they’d break out in a sweat. Or trembling. You’d see a twitch or you’d see a tremble, or movement of the feet. You know how when you get nervous you can’t stand still? And even the breakup of the speech, when they talk. You ask them a certain question, their speech breaks up.”

A quasi-scientific school of study, using facial tics as lie detectors, has been promoted by Mark Frank, a former bouncer who came to believe he could tell by looking at people’s faces whether they were carrying guns, false IDs, or hot tempers. Now a psychologist at the University of Buffalo, he trains investigators to watch for fleeting “microexpressions” that indicate fear: eyebrows moving up and together, or a muscle that contracts to stretch the mouth, for example. So keen is the Department of Homeland Security to divine emotions this way that it launched an airport security project to detect body language and granted Rutgers university $3.5 million to design computer software that could read faces more reliably than veteran cops like Sergeant Brennan.
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But Brennan felt he was pretty good at it, and he found that funny things often happened in Union Station when he asked for identification. “You’d be surprised how often there’s no ID, no ID at all,” Brennan said, because the passenger had given a false name to begin with and didn’t want to produce a contradicting document. “Who travels anywhere on any type of transportation and don’t have a driver’s license or a wallet with an ID in it? ’Cause you’ve got your money, your billfold. We got a lot of that.

“So, when I got to a point where I felt comfortable that this whole conversation is a bunch of horseshit, I’d tell him, ‘I’m Sergeant Brennan. The reason I’m here at the station is to stop drugs coming into and through the city. Are you carrying any drugs in your bag?’ Basically we were focusing on drugs at that time, not weapons. I’d always leave it at drugs. So, ‘Are you carrying any drugs in your bag? Are you carrying any drugs on your person?’ Always the answer would be no, right? Except for one or two cases, they said yes. But then I’d come right out with the next question: ‘Can I search your bag? Can I search you?’ I would never say, ‘Can I
look
in your bag, can I
check
your bag?’ I would use the word
search
. ‘Can I search your bag, can I search you?’ That’s what I wanted to do. I wanted to search. So I wanted to make it clear for the courts that I wasn’t asking just to look in the bag, or I wasn’t asking to pat this guy down. I wanted
to search you. And the answer ninety-nine point nine percent of the time would be yes.”

Brennan was a streetwise cop steeped in the ambiguities and contradictions of life on the underside, so he was not given to wild, sweeping assertions. Therefore, even if his percentage of 99.9 was exaggerated, his basic point seemed credible. Most people—57.6 percent—who told the Bureau of Justice Statistics that their cars had been searched in 2005 said that they had consented.

If you talk to police officers long enough, many will concede that the crooks they catch are stupid—amazingly stupid—and that the smart ones get away. A prosecutor described his brother, a New York state trooper with a wry sense of humor, dancing his way into probable cause for an automobile search. “I just want to warn you while I’m here,” he would say to a driver he’d pulled over for speeding on the Thruway, “it’s a criminal offense in the State of New York to carry a loaded gun in a car.” More often than you’d expect, the driver would reply innocently, “My gun isn’t loaded.” Or the trooper might say, “It’s a criminal offense to carry more than fourteen grams of cocaine.” The driver might protest, “I only have four grams.”

In Union Station, any drug courier smart enough to know the law would know that despite Sergeant Brennan’s approach, she had the right to keep walking, refuse to answer questions, and not give up her bag for a search.

But some seemed to think they were smarter than they turned out to be. “They’d say, ‘Well, it’s not really my bag,’ ” Brennan recalled. “One guy said this: ‘I was in the McDonald’s, I was sittin’ there eatin’, and I think I picked up somebody else’s bag.’ Or, ‘I was at the train station, I was sittin’ next to a guy, and I picked up another bag.’ Those were said several times. So then, when that would happen, I’d get the yes, and the first thing I would do is [search] the person, ’cause if you got a weapon or something like that he’s gonna get me with it.… Basically it’d be squeezin’ the pockets, you know, you can tell when you’ve got a weapon. Or the crotch, hit the crotch. That’s where a lot of drugs were, in the crotch. Then if I found something in the crotch I would just tell him, ‘OK, I’m gonna reach inside there and take that out or you can remove it for me. What have you got in your crotch? Most of the time it would be drugs. Well, all the time it would be drugs. When you found an object, it was drugs.”

His signal to make the arrest was to say “cigarette,” like a magic word. “Boy, I’d like to finish this up and have a cigarette.” Or, “I could use a
cigarette.” And then he and his partner would grab the person and cuff his wrists behind him.

Curious, Brennan started asking those he arrested why on earth they had consented, “and it was just amazing why people told us, ‘You can search the bag,’ ” he said. The answers fell into three categories: First, they thought the police had information on them specifically, which meant, in effect, that they had already been caught. Although informants’ tips were often matched to Amtrak passenger lists to guide searches of those still aboard, those who had already left trains were unidentifiable, free and clear until something about them caught Brennan’s attention.

Second, they told Brennan that they believed he would search anyway, even if they said no. “ ‘It didn’t matter, did it?’ he quoted a generic reply. “ ‘If I told you no, you’re definitely gonna know I had drugs. So I had no choice but to say yes and try to make some excuse after you found them, if you found them. Or, I was hoping you wouldn’t find them.’ ”

That was the third reason Brennan heard: “They think they have the drugs so well hidden that they won’t be found.” He once discovered a sixty-gram cookie of crack cocaine disguised as cheese in a sandwich, complete with lettuce and tomato. “You know it’s not water soluble, you can’t hurt it,” he chuckled. “In the shoes, in the socks, in the baby diapers, in the false-bottom cans. One guy on the train had a can of oil. Who in the hell travels from Miami, Florida, to New York City with a can of oil? And you take the bottom off the can, and sure enough, there’s a half a kilo of coke in there. Potato-chip bags. That was a big thing, too. Potato-chip bags and cereal boxes. They would take out a portion of the cereal and a portion of the potato chips and reseal the bags. You know, just a dollar-ninety-nine-cent bag of potato chips. They’d remove the potato chips, leave some in there, and put in the cocaine. When you pick up the bag … you say, Yeah, I got it. You’ve never seen a potato-chip bag filled to the top. When they’d take out the chips, they’d fill it all the way up to the top. When you squeeze the top of a potato-chip bag, it’s only half full. But this bag is full to the top. And then it weighs about 2.2 pounds—I got a kilo in here. Fantastic.”

Ingenious hiding places for both drugs and guns were displayed on the bulletin board of the D.C. police department’s Narcotics Branch, where Brennan now headed a unit that included undercover officers. Behind the dashboard of a Chevy Suburban, a void had been fashioned large enough to hold a 135-pound woman, or plenty of drugs. A rifle rack had been concealed in a truck’s wide visor. Drugs had been placed in live African snails imported to England, in a car’s gas tank that could be
reached from the back seat, and in tampons that had been sliced open and resealed.

An entrepreneurial spirit had brought inventive devices to the marketplace. Police had found a Pepsi machine whose front opened to reveal a huge gun locker. A baseball cap contained a pouch, secured by Velcro where the visor met the headband, large enough to conceal a Beretta pistol. And a water bottle had been manufactured with three parts that unscrewed from one another: The top and bottom contained water, but the middle, its contents hidden by the label, could hold drugs.

Brennan liked to illustrate the intersection of police technique and case law by telling the tale of a twenty-one-year-old woman named Robin Nurse, who caught his eye with her purposeful stride through Union Station, off a train from New York at 12:30 a.m. She wore no rings, no necklace, no earrings. She walked past stores, staring straight ahead. Brennan followed her, then approached her, identified himself, and asked where she was going. To visit a friend, she said. And where did the friend live? On 145th Street, the woman answered. Oops, wrong city; there’s no 145th Street in D.C.

She averted her gaze, and her answers seemed evasive. She had bought her ticket with cash, which police interpret as an attempt to conceal identity. An ID card she produced could be purchased, he knew, and he later testified that he had “never seen one that was legal.” Brennan asked to search her tote bag. She refused. He had no probable cause to arrest her, so he told her that she was free to go but that her interview gave him grounds to detain her bag. She could wait until he got a drug-sniffing dog to check her bag, and if the dog smelled drugs he’d get a warrant to search it, or he’d give her a receipt for it and if it contained no contraband she could return and pick it up.

“She said, ‘I’m staying with my bag, and I’m going to sue you.’ I said, ‘OK, well, that’s fine. You have every right to, but I think I have enough from all your answers to have a dog check your bag.’ And she had some terrible answers.”

When he sent his partner for a dog, she changed her mind. “She decides, ‘I’m not staying with my bag, I’m leaving.’ I said, ‘OK, that’s fine. You’re free to go.’

“So, a cab driver who was standing nearby says to her, ‘Ma’am, did you want a cab?’ She says, ‘Yes, I do. I want to go to—’ and she looked at me right like this, she said, ‘I’ll tell you when we get in the cab.’ ” That was enough to establish probable cause, Brennan believed. “I said, ‘Now I’m detaining you with your bag. You will stay with the bag because of your
statement to the cab driver, “I’ll tell you where I’m going when I get in the cab.” ’ ”

Then, after a dog alerted on the bag and she was arrested, she gave consent to a search without waiting for a warrant, the court record shows; the bag contained two and a half to three kilograms of cocaine. The case was appealed as an unjustified detention, and the federal Court of Appeals for the D.C. Circuit upheld the police, finding that Brennan’s initial approach and questioning did not constitute a “seizure.”
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“We got a good ruling,” Brennan declared.

“We followed the law so often that we lost cases because we made mistakes,” he continued. “But we always fessed up to our mistakes. In other words, if we made a mistake, we learned by our mistake.… You held the driver’s license too long; you should have gave it back quickly. Or you held the ticket too long. We’d admit it. And that’s the best law enforcement. Admit what you do wrong. And you get credibility with the courts. And that’s why my group, when I worked with them, was so successful. I had a group of detectives that were fantastic, abided by the law.”

H
ERE ARE TWO
tales of a city. The first begins during twilight, about 5 p.m. on a December evening in the nation’s capital. A twenty-four-year-old black man named Tyshaun Bullock is driving a Mercury Marquis. Three plainclothes “jump-out” officers of the vice squad, specializing in narcotics, happen to be directly behind him in an unmarked, dark green Chevrolet as he runs a red light and turns left at the intersection of Mt. Olivet Road and West Virginia Avenue NE. They activate a siren and a small bubble light on the dash, and he pulls over.

Through his rear window, the officers see Bullock bending down and leaning side to side, as if hiding drugs or a weapon—or reaching for a gun. They have been trained to interpret such movement as suspicious, so one officer approaches the car on each side, while the third hangs back. They order the driver out and ask if he has any guns or drugs. “No, not on me. You can search me,” Bullock replies. An officer does a precautionary frisk and finds nothing.